The Information Technology and Innovation Foundation has filed comments with the Federal Communications Commission arguing that the federal equal opportunities requirement for broadcast television is unconstitutional and should be abandoned. The filing, submitted June 22, 2026, responds to ABC's petition asking whether the statute passes constitutional scrutiny. ITIF's answer is blunt: it doesn't. The think tank contends that the equal opportunities rule—which requires broadcasters to give all qualified candidates the same access if they air one candidate—violates the First Amendment and rests on outdated Supreme Court cases that treat radio spectrum as uniquely scarce in ways that no longer make sense.

The filing traces the constitutional problem back to two 20th-century Supreme Court decisions: NBC v. United States (1943) and Red Lion v. FCC (1969). Both cases authorized content-based regulation of broadcast speech based on spectrum scarcity, treating speech transmitted by radio waves as outside normal First Amendment protections. The FCC has relied on these precedents for its current efforts to regulate broadcast content. But ITIF argues those cases are "egregiously wrong" on multiple fronts. The report notes that auctions, lotteries, and unlicensed spectrum protocols now assign spectrum licenses between competing users without any reference to content, proving that content-neutral interference management is possible. The modern economy largely runs on communications networks that operate without harmful interference or content-based regulation, the filing states. ITIF also points out that there are far more TV and radio stations today than at the time of NBC and Red Lion, and that millions of websites, cable channels, and podcasts provide channels for news—making the scarcity argument even weaker.

According to the report, the equal opportunities statute is content-based because "for the FCC or court to know whether a licensee has violated Section 315(a), it must consider whether the broadcast content contained a candidate for office." The filing argues that content-based speech regulations must pass strict scrutiny under the First Amendment, meaning they must serve a compelling government interest in the least restrictive way possible. ITIF contends the rule fails that test. The report states that ensuring "fair" access to a medium of speech isn't a legitimate government interest, much less a compelling one, because "the fundamental rule of protection under the First Amendment" is "that a speaker has the autonomy to choose the content of his own message." The authors write that the FCC itself acknowledged the scarcity rationale is defunct when it repealed the fairness doctrine in 1987, writing then that "the scarcity rationale developed in the Red Lion decision and successive cases no longer justifies a different standard of First Amendment review for the electronic press."

Why does this matter now? The filing reflects broader tensions over the FCC's recent shift in enforcement posture. ITIF notes that the current FCC chairman has lamented the disuse of scarcity-based content regulations and cast his policy agenda as "reinvigorating this defunct area of law"—an effort met with surprise precisely because the public and regulated entities weren't relying on that framework. The report argues that overruling the scarcity-rationale cases wouldn't disrupt other areas of law; instead, it would heal what the authors call a "meritless exception" and allow normal First Amendment rules to apply to wireless speech just as they do to newspapers and websites. The filing points to Miami Herald v. Tornillo (1974), which held that fairness isn't a government interest to be balanced against a newspaper's editorial discretion, and argues the same principle should govern broadcasters. The report also warns that zealous enforcement of Section 315(a) would actually backfire by incentivizing broadcasters never to give any candidate airtime, since doing so could trigger an obligation to provide equal time to potentially dozens of qualified candidates.

ITIF recommends the FCC take action on its own authority rather than wait for courts to strike down the rule. The report urges the commission to "unwind all content-based regulations within its control, send the signal the Supreme Court invited that the underpinnings of the scarcity rationale are defunct, and decline to defend unconstitutional enforcement actions." The filing argues the commission should construe Section 315(a) as narrowly as possible, enforce only a minimalist version, and decline to defend its constitutionality on the merits. The bottom line: spectrum is no more scarce than printing presses or domain names, and the government's licensing function shouldn't come at the expense of broadcasters' First Amendment rights.